Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Annex I, 7. Unfair Commercial Practices Directive, Annex I, 31.

(1) Stating that a consumer has a chance to receive a discount on an alleged standard price, while in reality the defendant has never applied such standard price, constitutes an aggressive commercial practice.

(2) Advertising a service as being available for a very limited time only, whereas in reality that service is repeatedly lengthened, constitutes a misleading commercial practice.

(3) Stating that an agreement which is orally concluded, has been recorded, while in reality there is no such recording, constitutes an aggressive commercial practice.

The same applies for sending documents signed by a fictitious head of a fictitious department within a trader, in which the consumer is urged to comply with its obligations.

The same equally applies for sending invoices to consumers in which the consumers are threatened with legal proceedings and additional costs without any legal base supporting those claims.

(4) The advertisement by a trader of its products constitutes a misleading commercial practice as to the main characteristics of the product, when the trader creates a false impression as to the nature of its products.

 

The defendant is a company that offers photo shoots in its photo studio, the result of which is registered in electronic form.

The defendant approached consumers by e-mail stating that the consumer has been selected. In addition, consumers could do an online audition on the defendant's website for a photo shoot.

If the consumer was approached by e-mail, the consumer was informed that he was selected based on his looks and personality and that he could win a photo shoot worth EURO 450 ("standard price"). If interested, the consumer could fill in on the website of the defendant the code that was attached to the email by which he was contacted, this in order to have a chance to win the competition. Consequently, the consumer would receive a telephone call of an employee of the defendant in which he was informed that he was selected (out of a number of submissions) and that he could obtain a price discount of EUR 325 on the EUR 450 photo shoot.

However, in reality, it was established that the defendant never applied a "standard price" of 450 EUR. In addition, it was admitted by an employee of the defendant that any person who received the email with the selection code, was contacted, hence, there were no real selection rounds to award certain consumers.

The second way in which consumers could participate in the offer of the trader, was by clicking on an "online audition" button displayed on the trader's website. By clicking on this button, the consumer was informed that he could participate in an online audition to be selected for one of the 3800 sponsored photo shoots. The consumer was urged to react instantly as the competition allegedly was only available for a very limited time. In reality, the action was repeatedly lengthened. Consumers subscribing to participate were later contacted by the defendant in order to make an appointment. The consumer was told that he was selected out of 62000 submissions. Here too, the consumer was informed that he would receive a discount of 325 EURO.

Whenever the consumer made an appointment, he was reminded by email of this appointment. In the email, it was stated that the appointment, made by telephone (with a defendant's employee), was recorded as a proof of the agreement. However, in several cases, there were no such recordings. Further, the email was signed by a certain person, indicated as "head legal department" of the defendant, whereas that person did not work with the defendant nor was there a legal department.

Further, a consumer that did not appear at the photo shoot, received an invoice of 465 EUR ("standard price" and administrative fee) in which the defendant proposed to amicably settle the debt for 140 EUR. When not paid on the due date, the defendant send another invoice, amounting to 465 EUR and stating that in lack of payment, legal proceedings would be initiated. Again, the invoices were signed by a fictitious person, head of a fictitious legal department.

Finally, it was established that the defendant promoted its activities as being a scout for and promoting young models (i.e. like a kind of modeling agency), as the defendant used slogans as "You are selected!", "No more need for modeling agencies!", "Direct online modeling!", "You are scouted!", etc. Both when the consumer was directly contacted by the defendant or when he participated in the online audition, the consumer was asked whether he was interested "in a modeling career". In addition, the defendant repeatedly referred to the fact that the consumer was "selected". Next, when the photo shoot took place, the consumer was sent the photographs and an additional "sponsoring offer" was made in order to help the consumer to launch his modeling career. The accompanying letter was again signed by a fictitious person working in the fictitious "New Talents Selection" and "Sponsoring Acceptance" department of the defendant.

(1) The Consumer Authority stated that by creating the impression that the consumer had a chance to receive a 325 EURO discount on the standard price of 450 EURO, while in reality the defendant has never applied a standard price of 450 EUR, the trader created the false impression that the consumer would win a prize. This is contrary to article 6:193i, sub h Dutch Civil Code, which implements article 31 of Annex I of the UCP Directive (black list).

(2) The Consumer Authority established that it was clear that the competition announced on the website of the defendant, was not available for a very limited time only as it was repeatedly lengthened. It was the opinion of the Authority that the purpose of this commercial practice of the defendant was to urge the consumers to take an immediate decision without leaving the consumer sufficient time to take an informed transactional decision. By doing so, the defendant has violated article 6:193g, sub g, which implements article 7 of Annex I of the UCP Directive (black list).

(3) The Authority held that stating that the agreement on the date and place on which the photo shoot would take place, has been recorded, while in reality there is no such recording, had the sole purpose of coercing the consumer to appear at the agreed upon time and place.

The same applies for sending documents signed by a fictitious head of a fictitious legal department and sending invoices to the consumers who did not appear for the appointment, threatening the consumers with legal proceedings and additional costs without any legal base supporting those claims. As a result, the Authority ruled that, by way of coercion and undue influence, the commercial practice is to be considered aggressive as it significantly impairs the consumer's freedom of choice or conduct and causes him to take a transactional decision that he would not have taken otherwise.

In the Authority's view, this assessment applies all the more since the target audience of the defendant mainly consisted of minors and young adults (who have little experience with legal affairs).

(4) It was stated that the main activity of the defendant is organizing photo shoots, sending recorded photo shoots to the consumers, etc. However, in no way is talent selection, scouting, organizing modeling auditions or facilitating the career of models, an activity of the defendant.

The Consumer Authority first reminded that the target audience of the defendant are minors and young adults (average consumer), who often give particular attention to their looks so that they would be particularly vulnerable to the commercial practices of the defendant. The Authority further indicated that the statements of the defendant, as it would be able to launch the modeling career of the consumer, were manifold, both oral and in writing. Many of these statements were one-liners and eye-catchers and were directly aimed to convince the consumer that the defendant was active in the modeling industry. As to the letter sent to the consumers, accompanying the recording of their photo shoot, it was held that this letter contained false information as it was signed by a fictitious person working in the fictitious "New Talents Selection" and "Sponsoring Acceptance" department of the defendant. Al those arguments led to the conclusion that the defendant had advertised its products in a misleading way, as to the main characteristics of the products.

As a result, the Authority held that the defendant had communicated information which is likely to deceive the average consumer to which it is aimed, more in particular as to the main characteristics of the products, thereby violating article 6:193c of the Dutch Civil Code, which implements article 6, 1(b) of the UCP Directive.

(1) Does stating that a consumer has a chance to receive a 325 EURO discount on an alleged standard price of 450 EURO, while in reality the defendant has never applied a standard price of 450 EUR, constitute an aggressive commercial practice?

(2) Does advertising a service as being available for a very limited time only, whereas in reality the service is repeatedly lengthened, constitute a misleading commercial practice?

(3) Does the statement that an agreement, concluded by telephone, has been recorded, while in reality there is no such recording, constitute an aggressive commercial practice?

In addition, does the same apply for sending documents signed by a fictitious head of a fictitious department within a trader, in which the consumer is urged to comply with its obligations?

Moreover, does the same apply for sending invoices to consumers in which the consumers are threatened with legal proceedings and additional costs, without any legal base supporting those claims?

(4) Does the advertisement by a trader of its products constitute a misleading commercial practice as to the main characteristics of the product, when the trader creates the false impression that it can act as a modeling agency, while in fact the trader is merely a company offering photo shoots?

URL: http://www.consumentenautoriteit.nl/pv_obj_cache/pv_obj_id_CF3F4D103421CC72358761263A9925DC37310400/filename/Sanctiebesluit%20Fotosessie.pdf

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The defendant was fined EUR 100.000 by the Consumer Authority.